Sen. Mitch McConnell Admits Partisan Delay of Judicial Nominees

Hagan smokes out McConnell

Sen. Kay Hagan tried again on the Senate floor yesterday to get a confirmation vote for two North Carolina judges nominated to serve on the 4th Circuit U.S. Court of Appeals.

She failed, but she did manage to smoke out Republican leader Mitch McConnell as the chief obstacle.

After strong approval by the Judiciary Committe in January, Judges Jim Wynn and Albert Diaz have been stalled. No one admitted putting a hold on their nominations … but it came out yesterday when Hagan requested unanimous consent to schedule a floor debate at a time to be determined by the majority leader.

McConnell objected and stated his reasons: partisan payback.

Infuriating.

Yes, both parties have played stupid political games with judicial nominations in the past. But how about giving Wynn and Diaz a pass? Both Hagan, a Democrat, and North Carolina’s Republican senator, Richard Burr, strongly support them. They won bipartisan backing in the Judiciary Committee (except for one Republican who voted against Wynn). The vacancies on this court need to be filled.

What does this tit-for-tat accomplish except guarantee it will never end? Senate Republicans, it’s past time to allow a floor vote on Wynn and Diaz.

Here’s a transcript of yesterday’s exchange on the Senate floor:

Mrs. HAGAN. Mr. President, I come to the Senate floor this afternoon to discuss two nominees for the Fourth Circuit Court of Appeals—Judges Jim Wynn and Albert Diaz.

When I came to the Senate, I had high hopes of increasing the number of North Carolinians on the court. North Carolina is the fastest growing and largest State served by the Fourth Circuit. Yet only 1 of the 15 seats is filled by the abundant talent from our State, and over the past century North Carolina has had fewer total judges on the court than any other State.

Furthermore, there have been inexcusable vacancies on this court throughout history. Given that the U.S. Supreme Court only reviews 1 percent of the cases it receives, the Fourth Circuit is the last stop for almost all Federal cases in the region. We must bring this court back to its full strength. Since 1990, when this court was granted 15 seats, it has never had 15 active judges.

Judge Wynn brings decades of judicial experience to the bench. He has served on the North Carolina Court of Appeals since 1990 and had a brief tenure on the State supreme court. He has been the chair of the bar association’s Judges Advisory Committee on Ethics.

Additionally, Judge Wynn has served on Active and Reserve Duty in the Navy for 30 years and was a certified military trial judge. He has been honored for his extraordinary service several times, including three Meritorious Service Medals.

Judge Diaz has served since 2005 as one of North Carolina’s three business court judges. Prior to that, Judge Diaz was a judge on the State superior court for nearly 4 years.

As a business court judge, Judge Diaz has handled complex business cases. He started as a lawyer in the U.S. Marine Corps, was an appellate counsel in the Navy’s Office of the Judge Advocate General and has been a judge in the Marine Corps Reserves.

Judge Diaz also has extensive experience in business litigation and has served on the State Judicial Council which advises the State supreme court’s chief justice on ways to improve the courts. He is a graduate of New York University Law School, with a graduate degree in business from Boston University and undergraduate degree in business from the University of Pennsylvania.

I note that both judges have received unanimous ratings of well qualified from the American Bar Association.

Additionally, both men’s confirmation to this Federal bench will be historically significant, as Judge Diaz will be the first Latin American on the Fourth Circuit and Judge Wynn will be the fourth African American to ever serve on this bench.

These fine men have the support of both myself and my colleague from North Carolina, Senator Burr. Editorials and newspapers throughout North Carolina have praised these nominations and have urged their swift confirmation. The Charlotte Observer said Judges Wynn and Diaz are “widely regarded as intelligent, ethical judges who have won respect for their judicial and military careers. They are the kind of judges the federal bench needs . . . Their quality is so unquestioned that only partisanship could stall their nominations.”

Unfortunately, I worry that is what is happening. Both Judge Wynn and Judge Diaz were approved by the Senate Judiciary Committee on January 28—Judge Diaz unanimously and Judge Wynn with only one dissenting vote. But for over 5 months now, the nominations have languished on the calendar. It is past time that these two fine judges be confirmed to the Fourth Circuit.

Mr. President, as in executive session, I ask unanimous consent that at a time to be determined by the majority leader, following consultation with the Republican leader, the Senate proceed to executive session and consider en bloc the following nominations on the Executive Calendar: Calendar No. 656, Albert Diaz, to be a U.S. Circuit Judge for the Fourth Circuit, and Calendar No. 657, James Wynn, to be a U.S. Circuit Judge for the Fourth Circuit; that the nominations be debated concurrently for up to 3 hours, with the time equally divided and controlled between Senators Leahy and Sessions or their designees; that upon the use or yielding back of time, the Senate proceed to vote on confirmation of the nominations in the order listed; that upon confirmation, the motions to reconsider be considered made and laid upon the table en bloc, the President be immediately notified of the Senate’s action, and the Senate resume legislative session.

The PRESIDING OFFICER. Is there objection?

Mr. McCONNELL. Mr. President, reserving the right to object, and I will be objecting.

The PRESIDING OFFICER. The Republican leader.

Mr. McCONNELL. Mr. President, I appreciate the perspective of the junior Senator from North Carolina, but my perspective on the Fourth Circuit covers a little longer period of time.

I advise my friend that for the last Congress of the Bush administration, the Democratic majority only confirmed one nominee to the Fourth Circuit. As a result, the circuit was fully one-third vacant with five vacancies when President Bush left office.

These vacancies were not due to President Bush’s failure to nominate several qualified candidates. As a result, my Democratic friends had to resort to creative reasons to justify keeping these seats open.

To give an example, the Fourth Circuit seat from Maryland was kept vacant for the entirety of the Bush administration—8 years. The last nominee for that seat the Democrats objected to was a fellow named Rod Rosenstein. Nobody could reasonably contest his credentials, so my Democratic colleagues turned his virtues into a vice, saying he was doing too good a job as U.S. attorney in Maryland to be promoted to the circuit court.

Despite the unfair treatment that Mr. Rosenstein received, many Senate Republicans in this Congress, including myself, supported President Obama’s nominee to this seat, Andre Davis.

Also in this Congress, Republicans, including myself, supported the confirmation of Barbara Keenen of Virginia to the Fourth Circuit. With her confirmation, the Senate has confirmed twice as many nominees to the Fourth Circuit as occurred during the entire last Congress of the Bush administration when Democrats controlled the Senate.

With respect to the vacancies from North Carolina, President Bush put up a nominee who satisfied all of Chairman Leahy’s criteria for confirmation—Judge Robert Conrad. Judge Conrad had the strong support of his home State Senators. He received the blessing of the ABA, the Democrat’s so-called gold standard, and he would fill a judicial emergency. Yet Judge Conrad could not even get so much as a hearing.

In fact, the Senate has been processing President Obama’s judicial nominees, both district and circuit court nominees, faster than it processed President Bush’s judicial nominees.

How has the President responded to our efforts to work in good faith? He recess appointed Donald Berwick before the Finance Committee could even schedule a hearing on him, and despite the fact that Republicans on that committee requested that a hearing be scheduled on his nomination.

On April 19, 2010, the President nominated Dr. Berwick to serve as Administrator of the Centers for Medicare and Medicaid Services. Less than 3 months later, and without a Senate Finance Committee hearing taking place, the President recess appointed Dr. Berwick. The reason offered was that the Republicans were blocking this vital appointment, so they could wait no longer to follow the constitutional process of Senate confirmation. Yet this position was vacant for the first 16 months of the Obama administration and has not had a confirmed Administrator since 2006, since my friends on the other side of the aisle were blocking the Bush administration nominee.

Democrats did not schedule so much as a committee hearing for Donald Berwick. The mere possibility of allowing the American people the opportunity to hear what he intends to do with their health care was reason enough for this administration to sneak him through without public scrutiny.

Given the President has been so dismissive of the Senate’s right to provide advice and consent under the Constitution, I am not inclined at this point to consent to the request proposed by my friend from North Carolina. Therefore, Mr. President, I object.

The PRESIDING OFFICER. Objection is heard.

The Senator from North Carolina.

Mrs. HAGAN. Mr. President, it is disappointing that we cannot get consent for these judges. Senator Richard Burr and I together introduced these two individuals at the Judiciary Committee hearing. I will say that I remain committed to working with my colleagues on both sides of the aisle, as well as any Senator who has concerns over either judge, to working toward a reasonable solution that would allow an up-or-down vote on Judges Wynn and Diaz.